ABRAM v NATIONAL AUSTRALIA BANK LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and POWELL JJA 19-20 April 1997, 1 May 1997 [1997] NSWCA 7 NATURAL JUSTICE — APPREHENDED BIAS — WHETHER TRIAL JUDGE DISQUALIFIED FROM HEARING PROCEEDINGS — appellant and Hastie charged by Bank with contempt of court — at hearing Bank and defendants joined in asking that the proceedings be dismissed — no evidence called for prosecutor — judge cross-examines defendants — proceedings against Hastie dismissed — judge makes findings of fact in Hastie's case relevant to case against appellant — trial judge refuses to allow proceedings against appellant to be dismissed — trial judge refuses to disqualify himself from hearing the further prosecution of the proceedings against the appellant — On appeal, held, by the court: (1) trial judge's orders invalidated on basis he should have disqualified himself from hearing further prosecution of contempt proceedings on grounds of apprehended bias; (2) trial judge's orders refusing the appellant leave to prosecute certain witnesses for perjury should also be treated as vitiated: per Powell JA, observations on procedure and on whether elements of contempt could be satisfied in the circumstances of the case. Webb v The Queen (1994) 181 CLR 41 Commissioner of Police v Reid (1989) 16 NSWLR 453 Cachia v Hanes (1994) 179 CLR 403 Livesey v NSW Bar Association (1983) 151 CLR 288 Yeldham v Rajski (1989) 18 NSWLR 48 Mason P, Priestley and Powell JJA The background. On 3 August 1994 O' Keefe CJ Comm D found Mr J Abram guilty of contempt of court. Mr Abram and Mr RM. Hastie had been charged with contempt "in that they entered the premises known as 24 Mulgrave Road, Mulgrave on 16 July 1993 and remained thereon until 19 July 1993 and secured those premises against the Plaintiff Bank's interest and denied the Bank its servants and agents access to the premises". On 10 August 1994 O'Keefe CJ Comm D ordered that Mr Abram perform community service work for 100 hours, and made ancillary orders. Mr Abram appealed against the finding of guilt and the orders. He appeared for himself in the appeal. A considerable history preceded those events of 16-19 July 1993 relevant to this case, but these reasons will mention only what is needed for an understanding of the main features of the appeal. On 29 June 1992 judgment was entered in Supreme Court proceedings (50454 of 1991) by the National Australia Bank Ltd (the Bank) against Miss Benecke ordering her to give to the Bank possession of 24 Mulgrave Road, Mulgrave, New South Wales. Pursuant to the judgment a writ of possession issued from the court on 10 June 1993 directing the Sheriff to enter 24 Mulgrave Road, Mulgrave and cause the Bank to have possession of it. The Sheriff executed the writ of possession on 28 June 1993. 2 UNREPORTED JUDGMENTS The premises were a farm on which Mr Hastie claimed to be conducting a business involving the production and sale of wool from Angora goats. On 29 June 1993 Mr Hastie commenced proceedings (12469 of 1993) in the Supreme Court against the Bank claiming declarations that he was a lessee from Miss Benecke of 24 Mulgrave Place, Windsor (which has been assumed to be the same as 24 Mulgrave Road, Mulgrave) and entitled to quiet occupancy of the premises. Later that same day Mr Hastie appeared before Studdert J seeking an order having the effect of putting Mr Hastie back into possession of the premises. Counsel for the Bank was present. With Mr Hastie was Mr Abram who was allowed by Studdert J to speak on behalf of Mr Hastie. The judge said he could make no order that day because of lack of time to obtain a sufficient understanding of the facts. He stood it over for further hearing on 2 July 1993. He also noted that the Bank was in the meantime "agreeable to Mr Hastie getting access to the premises to obtain any obvious personal effects". On 2 July 1993, Mr Hastie gave evidence in chief and was cross-examined. An issue arose about the genuineness of the lease he was relying on. The case could not be completed and was adjourned to 29 July 1993. Mr Hastie asked for access to wool and stock on the premises essential, he said, to get his business moving. There was brief discussion about the effect of the Bank's order for possession. The Bank and Mr Abram for Mr Hastie were in dispute on this. Mr Abram was saying the Bank had no order for possession of Mr Hastie's property, had taken it upon itself to decide what it would and would not release, and that that was clearly wrong. Studdert J made no ruling on the competing views. In the following days there was discussion and argument between the parties about Mr Hastie's position during the period before the case came back before Studdert J. Mr Hastie and Mr Abram had been on the property, with the knowledge and limited acquiescence of the Bank. The local police became party to the discussion. This led to two faxes being sent by Studdert J's Associate, on 14 July 1993, stating how matters had been left by Studdert J on 2 July 1993. The first was to Senior Constable Fancey, Windsor Police, the second to Snr Constable Fancey and also to Mr Abram, and to Mr Nicholas QC, the Bank's counsel. The first fax said: "RM HASTIE v NATIONAL AUSTRALIA BANK LTD (12609/93) In this matter an order for possession by the Bank has been made. The matter came before Mr Justice Studdert on Friday 2 July 1993 when Mr Hastie sought to have the order for possession set aside. The matter was not completed on this day and has been stood over part heard to Thursday 29 July 1993. On Friday 2 July Mr Justice Studdert indicated that Mr Hastie was to have access to the property only for the purpose of removing his business records, stock and personal belongings. His Honour indicated that if the bank and Mr Hastie could not agree to appropriate access either party could come back to the Court on 24 hours notice. Beverly Mason Associate to Mr Justice Studdert 14 July 1993" Questions were raised about the accuracy of this, as a result of which the second fax was sent, as follows: "RAYMOND MICHAEL HASTIE v NATIONAL AUSTRALIA BANK Pursuant to a phone call received from Mr Joseph Abram the following further facts are stated in this matter: URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 3 1. An order for possession of the premises situated at 24 Mulgrave Road, Windsor has been made by the Supreme Court. 2. Mr Hastie came before Mr Justice Studdert in matter no 12469/93 on Friday 2 July 1993 seeking a number of orders, including: "A declaration that the Commercial Lease Number 4225 11 200 601440/01 dated 8th June 1992 Between Gloria Constance Benecke and Raymond Michael Hastie is a valid Commercial lease for premises being at 24 Mulgrave Place Windsor.' 3. The matter was not completed on 2 July and was stood over part-heard to Thursday 29 July 1993. No order was made on that day. 4. Mr Justice Studdert indicated that Mr Hastie was to have access to the property only for the purpose of removing his business records, stock and personal belongings. His Honour indicated that if the bank and Mr Hastie could not agree to appropriate access either party could come back to the Court on 24 hours notice. Beverly Mason Associate to Mr Justice Studdert 14 July 1993." Also on 14 July 1993, which was a Wednesday, a fax was sent by the Bank's solicitors to Mr Hastie, saying: "NATIONAL AUSTRALIA BANK LTD vy BENECKE We are instructed by the Bank that on Monday evening you, together with Mr Abram, entered the Mulgrave property and stayed overnight on the property. A similar attempt was made yesterday evening. Such action constitutes trespass. We note that you have informed the Bank that you purportedly took such action to ensure the safety of the stock remaining on the property, which you allege is yours. (We have previously written to you pointing out that we do not accept that contention and that we regard the equipment, plant and machinery and stock and livestock as belonging to Miss Benecke.) We are further instructed by the Bank that it will retain security guards to patrol the property throughout the evening until Friday, 16 July 1993. However, we note that both under the mortgages and at common law, the Bank is not liable for any loss which any person may suffer in relation to any personal property remaining on the premises. We also note that the Bank has informed you that all equipment, plant and machinery, stock and livestock is to be removed by Friday, 16 July 1993. Of course, before that property is released to any person Miss Benecke's written authority will be required. Lastly, we are instructed that should there be any further unauthorised entry to the premises, steps will be taken to remove all personal property remaining on the premises as the Bank is entitled to do." There are different accounts of what happened on the days following 14 July. It is not necessary in deciding this appeal to resolve the conflicts of fact emerging from the different accounts. It seems clear that Mr Hastie was on the premises from time to time, attempting to conduct his business pending the further hearing before Studdert J. It seems clear also that there was argument between him and Mr Abram on the one hand and various representatives of the Bank on the other about the effect upon Mr Hastie of the orders for possession the Bank had obtained and executed against Miss Benecke, also about the limits of what Mr Hastie could do in view of what had been said by Studdert J on 2 July, and also about what Mr Hastie was entitled to do in regard to his claimed business activities on the property including looking after the Angora goats. 4 UNREPORTED JUDGMENTS Then, a series of incidents occurred on 16 July. There are a number of accounts of these incidents which were recorded, in large part, by two separately operating video cameras. One of these video cameras, which recorded events for about three hours, was put in place by Mr Abram. The other was operated by a professional freelance cameraman with a view to selling the video tape for television purposes. Again, it is not necessary in deciding this appeal to decide the disputed questions of fact emerging from all the evidence of what happened on this day. It is possible to give a general outline of the events, without getting into the disputed details. The professional cameraman had been alerted to the likelihood of newsworthy events at the property on 16 July and to the proposed arrival at the property on that day of a petrol tanker converted to look like and called the "Trojan horse", owned by Mr J Bryant. In the morning, near the gate to the property, Mr Hastie said to persons then present that the Bank had notified him the goats would be sent to the knackery if he did not have them out by four o'clock on that day; he made it clear he was taking such possession of the property as would prevent the removal of the goats and allow him to continue business until his lease claim was decided by the court. At about this time Mr Bryant drove the "Trojan horse" on to the property. At one stage Mr Bryant closed one half of the gate, Mr Abram the other and the gates were then chained and locked. Police officers were present. There were discussions of the issues we have already described. The professional cameraman got Mr Hastie to tell his story and have it recorded on video tape. People came and went and there was argument, over some hours, about whether Mr Hastie could justify what he was doing. There appears to have been no violence at any stage. Eventually, shortly after 2 pm, the following took place (all recorded on videotape). A Bank representative asked Mr Hastie whether he would allow the Bank entry to the property that it had possession of. Mr Hastie said he would, under condition that he had a valid lease and was allowed to trade until the court matter was heard. The Bank representative then asked whether without agreeing to those conditions Mr Hastie would not allow him access to the property. Mr Hastie said no, that he (the Bank representative) had not got a court order and that he (Mr Hastie) had invited the other people on to the property. The Bank representative asked him to request their removal. Mr Hastie said he would do so if the Bank was prepared to allow him to trade from normal trading hours until the court decided the matter. He then asserted what he understood the Bank to have arranged with him following the Bank's obtaining possession and claimed that the arrangements had not been honoured. At this point a police officer asked him whether the situation was that if the representatives of the Bank did not agree to his conditions he would not allow them access and would not ask anyone to leave the property. The transcript of the video tape goes on: "Mr Hastie: Well I'm asking the bank.. Ball [a police officer]: No No is that... Mr Hastie: In consideration Mr Abram: They should be allowed access, they 're the owners. Mr Hastie: Oh, they can have access. Mr Abram: You've got a lease. Mr Hastie: But you're not to stop me from trading. URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 5 Ball: Ok we'll leave it at that, I think Ok Thank You... Ball: (to Mr Jamieson) Any other questions you want to ask... Mr Jamieson [the Bank representative]: No, not at this stage, thank you very much. Ball: Thankyou Mr Hastie." The Bank representatives and police officers then left. The situation then reached continued until 19 July when the Bank regained full possession of the property. The contempt proceedings. Preliminary. The Bank filed a notice of motion on 30 July 1993 in its proceedings against Miss Benecke (No 50454 of 1991) seeking separate declarations against Mr Hastie and Mr Abram that each was guilty of contempt. A statement of charge in the terms set out in the first paragraph of these reasons was filed on the following day giving thirteen paragraphs of particulars. Many of these paragraphs annexed further documents. In all the particulars and annexures comprised about 230 pages. Procedural questions concerning the way in which the contempt charges should be dealt with were heard by Giles J. Meanwhile negotiations were conducted between the Bank, Miss Benecke, Mr Hastie and Mr Abram about their various matters. The negotiations led to Mr Hastie and Mr Abram preparing forms of apology which the Bank indicated would, so far as the Bank was concemed, satisfy the contempt charges, in conjunction with other agreed matters. The hearing: 24 November 1993. The contempt charges came on for hearing before O'Keefe CJ Comm D on 24 November 1993. Mr Nicholas QC began to explain the circumstances of the case, but then, after a short adjournment, Mr Lever, counsel for Messrs Hastie and Abram, told the court the matter had been resolved. There was then some discussion about the practical details of the settlement and Mr Nicholas proceeded to give further factual background. After saying that certain events had "now brought about a situation where the orders of the court, one might be confident, will now be observed and not interfered with", he continued: "We, for our part - again, acknowledging at once that it is a matter entirely for the Court; we are not seeking to presume anything - are confident that that will be the situation and particularly in light of the statement which my friend proposed to read, and in light of the undertaking which Mr Hastie and Ms Benecke will give, the effect of which is to enable the removal from the farm of items which have been a source of dispute for some time. HIS HONOUR: The argument is not whether they are fixtures, or is it? NICHOLAS: No. There is not a debate about that your Honour. HIS HONOUR: So you are not claiming that any of them passed with possession of the property? NICHOLAS: No we are not. We have not made any claim of that kind. Our concern is, and remains, that we frankly do not know who owns them. HIS HONOUR: All you say is that you have no claim. NICHOLAS: We have no claim and we do not want to be exposed, and we believe that we have brought about a situation where we are protected. We are hopeful that the Court's authority will be respected and the effect of these orders 6 UNREPORTED JUDGMENTS will be recognised. Only time will tell. We are grateful to my friend to have brought us to this situation but we are hopeful that that will happen it may be that your Honour might find it appropriate to make some observations as well, but that is how we see it. Those are the matters. HIS HONOUR: Thank you Mr Nicholas. Yes Mr Lever?" The above shows, in our opinion, that although it was not said in terms, it was the understanding of all then present that the giving of the apologies would be an end of the contempt charges. It does not appear that there was any discussion of the technical position that would then arise, but we can see no other explanation for what was happening than that the agreement between the Bank and the persons charged (which, as counsel had said, "resolved the matter") was that, subject to the court's opinion, the Bank would not press the contempt charges. Such an understanding is the only explanation for the course then taken by counsel for Mr Hastie and Mr Abram. He read their apologies, which he called "statements", to the court. Mr Abram's was as follows: "T, Joseph Abram, accept and acknowledge that my conduct in entering upon the property situated at 24 Mulgrave Road, Mulgrave, between 16 July 1993 and 19 July 1993 may have been likely to have been perceived by this Honourable Court and the National Australia Bank Ltd as conduct in breach of orders for possession made by the Supreme Court on 29 June 1992 but in proceedings No 50454/91. I also accept and acknowledge that my conduct may have been likely to have been perceived as pre-empting the outcome of Mr Hastie's proceedings before Mr Justice Studdert being proceedings No 12469/93. I accept that, in these circumstances, this perception of my conduct was reasonable. It was not my intention to act in contempt of this Honourable Court and I regret and apologise for what I did." Mr Hastie's statement was in similar terms. O' Keefe CJ Comm D then asked Mr Abram to stand and asked him whether he had authorised counsel to make "that apology", to which Mr Abram answered yes. The following is then recorded: "HIS HONOUR: Do you recognise the seriousness of the apparent breach, which I have not yet determined of course, of the court's order? ABRAM: I do. HIS HONOUR: And you recognise that if this is not accepted and the matter is heard and you are found in contempt you stand in jeopardy of being committed to Long Bay? You understand that, do you? ABRAM: Yes, I do." His Honour then asked Mr Hastie similar questions to which similar answers were given. The transcript then continues: "HIS HONOUR: Yes Mr Lever? LEVER: That leaves the matter of the agreement reached between the bank Mr Hastie and, later this afternoon I anticipate, Miss Benecke. HIS HONOUR: Is it said in the proceedings that Benecke authorised Abram or Hastie to do what they are alleged to have done? NICHOLAS: No your Honour. Could I explain. It is necessary to have Ms Benecke's release because obviously there is this outstanding question of ownership. My friend will tell you about that." Mr Lever then went on to explain further details of the practical arrangements made between the parties to bring all the matters between them to a conclusion, which led to discussion between the judge and both counsel. URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 7 "LEVER: Subject to Mr Hastie getting to Windsor and getting Ms Benecke to sign the document I think that, so far as my clients are concerned and subject of course to what the Court does, concludes the matter. NICHOLAS: Just following that, we would not be asking your Honour to dispose of the proceedings if the Court were otherwise minded to do so; we simply ask that the matter stand down until a convenient time this afternoon and see who happens, but it was important at least to get to this stage. Your Honour may care to say something." It seems quite plain that at this stage, counsel, despite the obscurity and equivocation of their language, and without having stated in formal terms what the results of their agreement would be, were, for practical purposes, going on the basis that the matter had been settled. (In fact, in the argument in this court, Mr Nicholas agreed that at this stage, all parties wanted the case dropped (transcript p42 lines 56-58, p43 lines 1-4).) However, the proceedings then began to take an unexpected turn. The judge wanted to know whether there had been a fracas on 16 July. Mr Nicholas said there had not been, but then gave an account of events, including the appearance on the scene of the professional cameraman, Mr Bryant and his Trojan horse and the broadcast on television that night of an edited version of the cameraman's videotape. This led the judge to ask what the association was between Mr Bryant and Mr Hastie and Mr Abram. Mr Nicholas said they were members of the Financial Victims Association and gave an account of another case in which Mr Bryant and his horse had been concerned in Queensland. The judge then asked what the issues would have been had the contempt proceedings been contested. The transcript continues: "HIS HONOUR: How does Mr Bryant come into it, and how does Mr Abram come into it. LEVER: He is a friend of Mr Hastie who suffers from Bell's palsy. He also has pleurisy. The relationship is he assists Mr Hastie on my client's case. HIS HONOUR: Is it a long standing friend or as a new found friend? LEVER: About a year or so. HIS HONOUR: Coincidentally with the institution of the proceedings for possession. LEVER: More recently I think HIS HONOUR: I regard this as a very serious matter. I will read the affidavits in the matter. I have to be satisfied that the public interest is met by the arrangement. I will stand the matter down." At this stage the Bank's affidavits (in formal language, the prosecution case in chief) had not been read. The evidence in them was not before the judge. Presumably the affidavits he was referring to were those of the defendants to the charges. A little later, before adjourning, he said: "HIS HONOUR: Let me see the video for myself and make my own judgment about what one sees and hears then I will have a look at the transcript after I have done that. I will look at both." The judge was then shown the unedited Channel 10 videotape of 16 July. He said: "HIS HONOUR: One inference one may draw from that is that there is a contempt involved, not just into the re-entry into the property. If the inference be drawn that the television people were brought there as with Mr Bryant for the 8 UNREPORTED JUDGMENTS purposes of making some public show, the Court may draw the inference that the whole of that proceeding was designed to intimidate a litigant from enforcing its rights which the Court had declared. NICHOLAS: Preston's case. HIS HONOUR: That itself may even be a more serious contempt than the mere re-entry because it intimidates people in this community from enforcing their rights. If you do it in association with others it may itself be a criminal act. I adjourn this matter until 3.30." When the matter came on for hearing again at 3.30, his Honour raised with counsel aspects of Mr Hastie's affidavit which he had read, from which he had formed the view that Mr Abram "must just have been a professional meddler for all I know and there is every indication from the rest of it that he may have been just that." Counsel argued that that inference was not open on the evidence. His Honour next took up the matter of Mr Hastie's having, on 16 July, said he would only let the Bank into possession upon conditions. His Honour said that Mr Hastie "never withdrew the conditions". He also said he was very concerned about that. Counsel pointed to the evidence indicating some resiling by Mr Hastie from the position he had adopted. His Honour made no reply to this. The next matter taken up by the judge was that he had not been able to ascertain from Mr Hastie's affidavit the circumstances in which the television people were there. The judge asked how the professional cameraman had come to be at the site on 16 July. "LEVER: Prior to the 16th he had never met, had contact or had any conversation with Abram or Hastie. He met them for the first time on 16th. Were not known to him. He was asked to come to the property by somebody else. HIS HONOUR: Who? LEVER: Bryant. HIS HONOUR: But Bryant was party to the whole business. He brought his Trojan horse. He got access to the premises. He had the gates closed after the Trojan horse came in by the defendants in these proceedings. Surely I would draw the inference from that that they were acting in concert. LEVER: With respect no. This inference is available to be drawn, that Bryant is a person who takes his Trojan horse around to trouble spots. HIS HONOUR: Who tells him there is going to be a trouble spot on 16 July? LEVER: I don't know. Bryant is not my client. HIS HONOUR: No, but your client should know. LEVER: Mr Hastie does not know and if necessary Mr Hastie will give that evidence - - HIS HONOUR: And he will tell me that will he, because unless I know that and have some explanation in respect of the presence of the television people, my present inclination is not to accept the settlement in this manner and to proceed with it because I regard it as a most serious contempt if established." Mr Lever evidently took the last thing said by his Honour as an indication that if evidence were put before him showing that Mr Hastie and Mr Abram had not brought about the presence of the television people he would go ahead with the settlement, but that if he were not so satisfied he would regard it as a most serious contempt "if established". Counsel embarked upon showing the judge that his clients had not been responsible for the presence of the cameraman. To do this he called the cameraman and then his two clients. The cameraman gave evidence that he had URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 9 been contacted by "Joe Bryant's people" and that prior to 16 July 1993 he had never spoken to or met Mr Hastie or Mr Abram and that they had not asked him to go to the farm. Mr Hastie then gave evidence to the same effect. He was not cross-examined by Mr Nicholas. He was however cross-examined by the judge, who asked a series of questions about how Mr Hastie had come to meet Mr Bryant and Mr Abram. The transcript then records the judge's following further questions and their answers: "Q. Did you know anything about the Trojan horse coming to the property? A. No, I knew nothing about the Trojan horse. Q. Well when it appeared on the scene you must have been quite surprised. A. I said to Mr Abram - Mr Abram said he did not have time to tell me, but Mr Bryant was coming, but he was I think surprised that the Trojan horse came and when it came I thought it would park outside. I was talking to Mr Mathews and I saw it coming down the driveway. The gates were already opened and padlocked opened. Q. Why? A. Because I was going to open up to trading Q. I see. When this Trojan horse came, much to your surprise, you asked Mr Abram how it came to be there, did you? A. Mr Abram told me. Q. What did he say? A. I forgot to tell you that Joe Bryant was coming along today as moral support for me and I said to him, "Well, I didn't expect the truck to be here' and he said, 'Nor did I', and I said, "Well it is here now. We might as well leave it here for the moment' and I was worried about my goats being on the laneway, that they might come through as well. There was not so much confusion but there were a lot of things happening at that particular time. Thereafter the cameraman arrived on your property? That is right. Were you surprised that he had come as well? Yes, I was. Did you ask Mr Abram how he came to be there? Sorry? How the cameraman came to be there? I am not sure exactly. Did you ask anybody? . I may have said to Mr Bryant, because he was there and he may have said something about it, but I did not really question it too much at the time because there was so much happening at that particular point, and I was concerned mainly about the animals first up and what was going on. Q. You do seem to have posed for the camera according to the video that I saw; is that accurate? A. How do you mean 'pose'? Q. Well, you are showing the animals' buttocks, the animals eyes and coats to the camera. The cameraman is asking you to stand in a particular position, to bob down for the camera, et cetera? A. That was probably a good half an hour to three quarter of an hour afterwards. Q. But you present to the Court as a willing participant in the taking of the film; is that the situation? >OPOPOPOPO 10 UNREPORTED JUDGMENTS A. The main thing that concerned me was the fact that the animals, Angora animals, were going to be taken off to the knackery that afternoon, and my main concern was that I was not allowed to attend to the animals or anything like that when I was on the farm the two weeks before hand, and in fact some of the animals were dying, laying in the pen dying, and that concerned me greatly. I asked the bank if I could bring my vet down to have them put down. And what one must understand particularly with the goats, particularly in that wet area, is that they get worms quickly and they can die within two or three days. That was what was happening because we had been through the winter, there was a flush of feed coming up and they were starting to get the scours. Q. They get it from the grass or the ground? A. Usually what happens in the eggs are on the grass that goes into the intestine and it multiplies from there and we have trouble with the barber pole worm. Q. Is that a particular type of worm that attacks goats or does it attack other animals as well? A. Mainly goats. It attaches inside to the lining of the rumin and sucks blood, and the animals become anaemic and they die quickly. Q. Come back to the video. Did it occur to you that that video was being taken not for record purposes but for publicity purposes. A. I think at the time I did not really consider it that way. Q. See, if I disbelieve that answer that you have just given me, then this contempt becomes of the most serious kind? A. Your Honour I would like to say - - Q. Why should I believe that answer? A. Firstly I do not believe that I was in contempts of the court and if I have been I do apologise for that, and to the National Australia Bank. The other thing was that my main concern was the fact of the animals, No 1 and No 2, was the fact that I had export orders I had try to fulfil I had attempted for over two weeks with the bank to negotiate some sort of position, and with the animals particularly the stud angora animals I was told they were going to the knackery that afternoon. I had to do something to stop all of this happening. In hindsight as far as the videoed the cameraman is concerned, putting my story as to what it was. I never expected that it would go to air at all but, as it happened, it did. Q. Did you see it on the television? A. No, I did not see it at all. Q. Someone videoed it? A. Someone had apparently taken it and shown me a copy of it on the Sunday. Q. What channel was it on? A. Channel 10. Q. Was it in some specialist proposal or was it in a news item? A. If I remember rightly, it was presenter Ann Ford doing it, so it must have been on the news. Q. The ordinary news? A. Yes. Q. Well Mr Hastie, these are worrying matters because, whilst I understand what you tell me about being motivated by a desire to assist animals with whom both your business and personal interests were identified, nonetheless in our society, if people take the law into their own hands and ignore the court's orders and take steps that may have the effect of intimidating people from enforcing their rights, you understand they are inciting anarchy, do you? URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 11 A. Yes. Q. And the problem in these cases is the public interest in preventing that against the personal interests of the person responsible for it, and that is the function I have to perform? 5 A. Thank you, your Honour." Mr Abram said in his evidence in chief that he had not met or spoken to the cameraman before 16 July. He had not asked Mr Bryant to have a television cameraman there. Mr Bryant had not told him that he was arranging for a cameraman. 10 Mr Nicholas did not cross-examine Mr Abram. This was consistent with the Bank's stance that it wanted the proceedings dismissed. The trial judge's cross-examination occupied six pages of transcript. In substance and in light of what later happened, he appears to have been considering whether the prosecution should proceed. 15 At this point Mr Abram's case was presenting the following unusual features: the judge had warned him that if the charge against him was found proved he stood in jeopardy of being committed to prison; the judge was now cross-examining him, and seeking admissions from him relevant to elements of the charge against him; and this was happening before the prosecuting party had 20 begun to present a case seeking a conviction. Further, on the judge's initiative, much of the subject matter of the investigation had shifted outside the charge particularised (set out on pl above). The judge then asked Mr Abram about his association with the Financial Victims Association. He answered that at one stage he had been touted as a senior 25 vice president. The judge then asked: "Q. What do you mean touted? A. Mr Hoines said that I was the senior vice president of the organisation. Q. And had you put yourself forward as such? A. I had signed a form to that effect. I never put myself forward as such to 30 anybody. Q. Had you signed a form that you ceased to be such an office holder in that organisation? A. Yes, I have. Q. When did you do that? 35 <A.Acouple of months ago, from memory. Q. But after July? A., Yes, after July. Q. So is it July 1993 you were touted, to use your word, as the vice president of the Financial Victims Association? 40 A. Yes, but I never - Q. And your association with Mr Hastie was in that capacity, was it? A. No, it wasn't. Q. You were just acting as a friend with altruistic motives, were you? A. Yes, that is true. 45 QQ. Did you ring Mr Bryant? A. Yes, I did. Q. Is he a member of the Financial Victims Association? A. According to the paperwork he may have been but it turns out that he is not. Q. Did he put himself forward as such whilst you were present on television 50 or otherwise? A. No. 12 UNREPORTED JUDGMENTS Q. You were aware of his mechanical device? A. Yes, I had seen it on television. Q. I don t suppose in the flesh is the right thing you had not seen it face to face? A. Thad seen it because it is parked in a yard of Mr Bryant's which is near where I live so when I to go Mount Druitt - - Q. So you knew what the Trojan horse was? A. I knew what it was. Q. And you knew Bryant had it? A. Yes. Q. When you rang him did you inform him of the likely events at 24 Mulgrave Road Mulgrave? A. Yes. Q. Did you ask him anything about bringing the Trojan horse to those premises? A. No I didn't. Q. Did you tell him that there was going to be something on there that the horse might be appropriate for? A. No I didn't. Q. Did he offer to bring the horse to the premises? A. No he didn't. Q. Why did you ring him then if you didn't want him to bring the horse to the premises and he wasn't technically a member of this Financial Victims Association? A. Because we were - well it takes two stages. The 19th was the day that we actually went onto the property but we were originally going to do it two days earlier. And the reason for that is that it was suggested to us by the public prosecutor at I think the Windsor Police Station that he could not see any reason why Mr Hastie should not be allowed to trade and a Constable Fancey became involved in making some inquiries and he said I can t see any reason why you should not be allowed onto the property. Now Constable Fancey came on to the scene. Then, a little later, Q. When this horse arrived did it not occur to you that when it arrived in concert with a television man this was now turning into some sort of a publicity stunt? Why, yes, it did occur to me. Did you take any steps to prevent that? There was nothing I could do about that. Did you ask Mr Bryant to leave the premises with his Trojan horse? No. Did you ask Mr Bryant? No. Did you ask the cameraman to leave? No, I did not. Q. You in fact appeared, in a couple of sequences of the video I saw, to be a willing participant in the video; is that an accurate impression or not? A. No, that is not accurate impression. Q. So you did not wish to be in the video; is that what you are telling me? A. I wouldn't put it like that." Again, "Q. So the real purpose of your padlocking the gates was to keep the goats in? POPOPO POP URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 13 A. Yes, and it continued, I do not know, for whatever reason on the second day when I was not there. Q. In the video there is not a goat in sight except when Mr Hastie demonstrates the goat to the cameraman. Are you serious about the answer that you give to me? A. Yes I am...." And again, "Q. The financial Victims Association of which you were then touted as the vice president, is that a group that seeks to bring pressure upon claimants to prevent them from pressing their claim? A. No, sir. Q. What is it? A. It was a figment of Mr Hoine 's imagination. It was part of his ego and it was something that he had the bank convinced that there were thousands of members when in fact there are four or five. Q. With a view to having them not press their claims against people? A. No. I don't know what the intention of it was. I thought it was to help self-litigants. That is what that is, what I thought it was for. Q. To help self-litigants? A. Yes. Q. How did you think having this Trojan horse on the property and the camera running would help litigants? A. I never planned for the Trojan horse. Q. Did you think that it might though? A. Not at all. Q. It didn't occur to you that publicity might cause a plaintiff not to press its claim? A. No, - no, not from the experience I have had with the bank at all; quite the opposite. Q. But that was not the object of the exercise you say? A. No. HIS HONOUR: Do either counsel have any questions? LEVER: Yes. Would your Honour permit me to approach the witness with a map? HIS HONOUR: You may, and any evidence you wish to tender in respect of Mr Abram I invite you to do so. I do not ask you to tender any further evidence in respect of Mr Hastie." Mr Lever then asked some questions, in what, in formal terms, would have been re-examination. At the end of this, the following is recorded: "LEVER: The affidavits have not been formally read, your Honour. AFFIDAVIT OF RAYMOND MICHAEL HASTIE MARKED EXHIBIT 1. AFFIDAVIT OF JOSEPH ABRAM MARKED EXHIBIT 2. VIDEO MARKED EXHIBIT A. LEVER: I also tender the transcript that I handed to your Honour this morning I make it clear that this is a transcript prepared by my side, and I said to your Honour I checked the last bit. Of course it is open to your Honour to check as well. TRANSCRIPT OF UNEDITED VIDEO TAPE TAKEN ON 16 JULY 1993 MARKED EXHIBIT 3. All this was being done, in accordance with the agreement between the parties in order to persuade the judge to dismiss the Bank's case. It is difficult to see that in any way a prosecution was being conducted. 14 UNREPORTED JUDGMENTS In the event the judge was persuaded by the parties to dismiss the case against Mr Hastie. Not so in Mr Abram's case however. The transcript continues, after the marking of Exhibit 3: "HIS HONOUR: Mr Abram has spoken of a video that he took; do you wish to tender that? As far as Mr Abram is concerned, I think you should treat this very seriously." Mr Abram's' video was tendered, Mr Abram's evidence ended and then: "HIS HONOUR: Mr Lever, I can indicate that in respect of Mr Hastie, other than perhaps an order for costs that I would want to hear you on, I would not be presently inclined to take any further action. His action was clearly foolish, but if I accept his evidence that he did not know what was going to happen, it may well be that one could draw the inference that he was carried away by circumstances, and no further action should be taken against him, although I am still concerned about the seriousness of the media event aspect of the matter. But I do not want him, if his health is not good, to be in any state of concern whilst the matter is in abeyance. That is my present view of the matter. I may revise that when I read the papers again, but it is improbable. I have much more difficulty about Mr Abram's position. I will hear you on that and I will need to view the material. I want assistance from the bank. That assistance will relate only to Mr Abram. I will only need to hear from you about what sort of orders for costs I should make. A number of authorities deal with indemnity costs as a way of showing the Court's disapprobation that was engaged in and that is what I have presently in mind, but for Mr Abram I have yet to make a determination and you will need to convince me that I should not take some step ultra in respect of Mr Abram." (Our underlining (italicising) of remarks later taken up by Mr Abram.) The hearing was then adjourned until 30 November 1993. 30 November 1993. On that day the judge told counsel that he was content to accept the apology of Mr Hastie in full satisfaction, subject to costs. He said Mr Hastie may have done what he did through being caught up in excitement or euphoria "generated by events which I accept occurred through no prime action on his part". In the course of further argument his Honour said that he did not accept Mr Hastie's evidence in one respect and went on: "The evidence in the video is clear beyond doubt that there was an exclusion of the Bank's officers, prevention of their returning and at the same time that they would be permitted upon the property only in the event that they consented to judgment in the matter that he instituted." His Honour then heard counsel further and gave reasons for judgment in Mr Hastie's case. In his reasons he first stated the charge and said that, as charged, Mr Hastie regained possession of the farm, and that from the evidence before him he was "satisfied that Mr Hastie thereafter was party, in concert with others, principally a Mr Joseph Abram - another person identified as Mr Joe Bryant - to the exclusion of the plaintiff Bank's representative from the land...". He said the Bank was "prepared to accept the apology... tendered as satisfaction of its rights." He mentioned an argument as possibly available to Mr Hastie that the court's order for possession had been executed by the Sheriff, possession taken by the Bank, with the result that the court's role had come to an end. He said it was not necessary for him to decide that matter because it had been conceded in the course of argument that what was done by Mr Hastie was wrongly done. He URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 15 thought Mr Hastie's apology was proper and acceptable as sufficient to satisfy the public interest and expiate the affront to the public interest which his behaviour involved. He then discussed an appropriate costs order and concluded that Mr Hastie should be ordered to pay the Bank's costs on a solicitor and client basis. His actual orders were that "Upon the apology tendered by Mr Hastie being accepted the notice of motion embodying the charge for contempt is dismissed and I order Mr Hastie to pay the claimant 's costs on a solicitor and client basis". Having delivered this judgment, his Honour turned to Mr Abram who had earlier in that day's hearing informed the court that he was no longer legally represented. What happened next makes it necessary to ask what position the proceedings against Mr Abram had reached at this stage. The same procedure had been followed to that point against him as had been followed against Mr Hastie. The "case" against Mr Hastie (if "against" is the right word) had consisted of what the Bank's counsel had told the court, the apology put before the court by Mr Hastie, Mr Hastie's affidavit and his evidence on the issue of how the television cameraman came to be present to film the proceedings including the arrival of the Trojan horse; and, possibly, Mr Abram's apology, affidavit and evidence. The prosecution's evidence had not been put before the court. The judge had then complied with the parties' request and dismissed the case against Mr Hastie. The position the case had reached against Mr Abram, in the judge's view, is perhaps apparent from what at this point he said to Mr Abram: "HIS HONOUR: Mr Abram, Mr Lever addressed on your behalf on the last occasion. Your case has troubled me a lot more than Mr Hastie 's case for a number of reasons. Mr Lever has put before me a number of matters which I take into account, and although he is no longer appearing for you do you wish to address yourself." It may be that the judge had other possibilities in mind, but what he said made it look as if he was at that stage thinking that a case seeking conviction of Mr Abram was complete and that nothing more remained for the court to do than to hear anything Mr Abram had to say additional to what Mr Lever had already put on his behalf. However Mr Abram had a different view of the situation. He did himself wish to address the court. In what followed, he dealt with a number of distinct areas of the proceedings. Some of these concerned procedural aspects. These were raised again in the appeal, but it is not necessary to deal with them here. Some parts of the transcript of what Mr Abram said show a misunderstanding of the position that had been reached in his case, and of what had happened leading up to the hearing. It is unnecessary to go into these matters. However, in dealing with them Mr Abram also dealt with some things he had, on one view, grasped fully; he referred to "your Honour's attitude in initially encouraging a settlement in this matter and then deciding on what to me appears to be an inquisition, [which had] resulted in a serious miscarriage of justice against me and I therefore request and indeed demand that your Honour declare a mistrial". He also said at this stage: *T am not a lawyer, but even I perceive the problem with current proceedings wherein your Honour has taken over from the plaintiff, but there is a huge imbalance against me because no-one is left with the task of proving the charge. Your Honour has taken on the role of inquisitor with the sole task of finding us guilty, not a hard task if the charge does not have to be proven and we are guilty if your Honour does not believe us. 16 UNREPORTED JUDGMENTS These proceedings have been improperly turned into a situation in which I am guilty until found innocent." Amongst his further submissions Mr Abram took up a number of the judge's previous statements. He said that following the judge's questioning of him on 24 November, he (Mr Abram) had spoken to Mr Bryant who told him that he (Mr Bryant) knew the judge very well. The judge said that the only contact that he remembered he had had with Mr Bryant was that he had been a member of a council that he once addressed. Mr Abram then asserted that the judge had at various local government conferences over a couple of years locked horns with Mr Bryant. Mr Abram then submitted. that the "only appropriate action is for your Honour to declare a mistrial and to disqualify yourself from having anything further to do with this matter'. He supported his application with further submissions, not connected with those concerning Mr Bryant, but based on the way the judge had conducted the hearing to that stage. Amongst much else he said: "Tam not in contempt and before this honourable Court can find against me the evidence must be properly presented, and I must be allowed to present my defence and then a jury may decide if I am guilty or not. " At the end of Mr Abram's submissions, the following happened: "*HIS HONOUR: Do you have any evidence that you wish to call in support of the matters on which you have addressed beyond the evidence which has already been given in the proceedings, Mr Abram? ABRAM: [ have got a transcript which I did not receive until yesterday. I am not a lawyer. If this matter is to proceed I would seek an adjournment so I may prepare my defence, put it on properly and in a trial, as it ought to have been in the first place as a deal done which denied me of a trial and a hearing. HIS HONOUR: So you apply for an adjournment? ABRAM: I apply for a proper hearing HIS HONOUR: Do you apply for an adjournment? ABRAM: And an adjournment HIS HONOUR: Do you apply for a hearing? ABRAM: Yes I do.* O' Keefe CJ Comm D then asked what argument Mr Abram wished to put in support of the view the matter should be heard by a jury, and some other of the matters raised in his address. After much further discussion Mr Abram asked leave to withdraw his apology and the case was adjourned until the following Thursday, two days later. 2 December 1993. When the proceedings recommenced on that day, Mr Abram raised the question earlier mentioned: what stage had the proceedings against him reached upon the conclusion of the proceedings against Mr Hastie. He said: "... the problem that I have with it is that it ought to be dealt with fully. There was no prosecutor...". The judge said he did not follow what Mr Abram was saying and Mr Abram then said: "We came into court on the first, previous occasion and there was talk of a settlement. If there had been no settlement there would have been a hearing where the plaintiff would have had to present his case and there would have been a defence presented to that. But there was none of that. I would like to, if this matter is going to be heard, so that there is some finality, for that to occur " URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 17 After a deal more further discussion, the position was reached that Mr Abram repeated his wish to defend the proceedings and submitted he should be able to withdraw his apology. He made it clear that his application to withdraw it was because at the time it had been put before the court he had not understood it to be an admission and he understood it to be a necessary part of the settlement proceedings. He had now been advised that it could be interpreted as an admission and it was the apology as an admission that he sought to withdraw. At the same time he maintained his own view that it was not an admission. O' Keefe CJ Comm D said Mr Abram was entitled to have his day in court and have the charge against him proved, but he would not give leave to withdraw his "admissions". The state the case had then fallen into is shown by an inquiry then directed to the court by counsel for the Bank: "NICHOLAS: There is one thing we would like some help with As you know when this hearing was before you the other day and Mr Abram was then represented, and we had our various deponents here for cross-examination, there were a number of people with that involved. Now, we would, through your Honour, wish to know whether Mr Abram wishes to cross-examine them or perhaps he be given a direction as to, by a certain time, perhaps by 4 February, to indicate to us which, if any, of the deponents he requires here, because we obviously have to deal with those matters." At that stage, so far as the transcript shows, the affidavits counsel was referring to had not been read. The possibility that they may have contained irrelevant or otherwise inadmissible material does not seem to have been considered. The court's reply to counsel's question was: "HIS HONOUR: I think that 's appropriate that I further direct that the contemnor give notice to the claimant on or before Friday, 4 February 1994 as to which, if any, of the deponents, on behalf of the claimant, are required to attend for cross-examination." The proceedings were then adjourned to 3 March 1994. 3 March 1994. One of Mr Abram's submissions on 2 December 1993 had been that there were some things missing from the transcript. Presumably that submission explained the first thing that appears on the transcript for 3 March 1994, when the proceedings resumed: *HIS HONOUR: Is that a tape recorder? We do not allow tape recorders in this Court. Would you hand it over to the Court Officer please. (Tape recorder handed to Court Officer.) When the proceedings got going on 3 March 1994 Mr Nicholas proposed to read the two affidavits that had been filed on behalf of the Bank for use on the first day of the proceedings. The trial judge asked Mr Abram whether he had any objection to any part of those affidavits. He replied that he did, but it turned out that his objection went further than to the affidavits. He asked the trial judge to disqualify himself, on the basis, as we would summarise it, of what had happened earlier in the proceedings. In the course of his submissions he said this: "... I will take you to the transcript where you say that Mr Hastie will be dealt with quite lightly and that my matter will be quite different. That, to me - it may not have been in the form of judgment, but it already expresses that your Honour already sees me as being guilty; how else can that be read? You have already 18 UNREPORTED JUDGMENTS found me guilty. You encouraged the deal or settlement, whatever you want to call it, where a so-called apology was obtained, which is an admission. YOU said that I was guilty, the way I read it, and most reasonable people would read it. You say that I am guilty and an 'ultra step' is designed for me and all that was remaining was summary or something, there was no more evidence, and you had already made your decision. Then you want to rehear the case. I think that's wrong I object to it most strongly because that does not give me a fair trial for which I am entitled, and that's all I see. I don't think I am going to get a fair trial in front of your Honour when your Honour has already decided, before any of today, that I am guilty." The words to which Mr Abram was referring are part of what has already been set out above at p25 and p26, namely: "\.. for Mr Abram I have yet to make a determination and you will need to convince me that I should not take some step ultra in respect of Mr Abram." Some observers might agree with Mr Abram's interpretation of his Honour's earlier words, others might not, but at the least they indicated that at that stage the judge regarded the onus as being on Mr Abram to prevent him taking some step ultra. However, the trial judge did not see it in either of those ways. He said he would hear the case. In this, we think he was clearly in error. The description of proceedings up to this point has been chiefly by setting out the transcript of key parts of what happened, most relevant to the appeal. It seemed better to let the transcript speak for itself rather than attempt a summary which might appear to distort relevant matters. In our opinion, once the proceedings had reached the stage they had done at the time when the case was adjourned on 24 November 1993, it was not possible for the further prosecution of those proceedings, in the face of a not guilty plea by Mr Abram, to take place before O'Keefe CJ Comm D. Before explaining our reasons for this opinion a little more fully, we will note what happened in the remainder of the proceedings, after O' Keefe CJ Comm D refused Mr Abram's application that he not hear them. The case now (3 March 1994) began to look like a prosecution. The Bank, for reasons we do not understand, took up the role of prosecutor. There was nothing to prevent it, consistently with its previous stance, from refraining from presenting any evidence. The judge, if he thought fit, could then have referred the matter to the appropriate public authority to consider whether the Crown would continue the prosecution, and in what venue. If the prosecution were continued, it certainly could not, in our opinion, have been continued before O'Keefe CJ Comm D. However, that course was not followed. Full proof was embarked on by the Bank. First the Sheriff gave evidence and was cross-examined. Mr Jamieson, who had sworn one of the affidavits earlier referred to filed in support of the Bank's case, gave evidence and was cross-examined, and Mr Mathews, the person who had sworn the other of those two affidavits was also called and cross-examined. At the end of the hearing on 3 March 1994 the proceedings were adjourned to 17 June 1994. URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 19 17 June 1994. At the beginning of proceedings on this day, Mr Nicholas, when refreshing his Honour's memory of what had happened before, referred to his Honour's "findings of fact made in the judgment of 30 November 1993 and we would say with respect that your Honour having made them in circumstances of course in which Mr Abram too was jointly represented by Mr Lever, there is really no room for departure and the subsequent evidence, if we need to come to it, we would say only reinforces the findings that your Honour made on that day, so may I take you to pl of your Honour's judgment of 30 November." Counsel then read out parts of his Honour's judgment of 30 November 1993 containing factual findings made in Mr Hastie's case. Mr Abram sought to object: "ABRAM«: If it is open for me to object to this being read in this way, I would like to object, because your Honour pointed out to me only too strongly - I will find it in the transcript - that Mr Hastie's case had concluded and that Mr Hastie's judgment was on a different basis that he hadn't contested it. I am contesting in I don't think any of this applies because this judgment was done before your Honour saw the evidence, in fact, I haven't put my evidence on yet, I haven't put my case. So this was before a case was put on, this was by consent, wasn't it, am I correct in that? The judge allowed Mr Nicholas to continue. On that day Mr Nicholas argued that the Bank had established a case to answer. The proceedings were then adjourned to 14 July 1994. Apparently on that day it was further adjourned, because the transcript recommences on 18 July 1994. 18 July 1994. Soon after proceedings recommenced on 18 July 1994 the trial judge delivered reasons for concluding that the Bank had established a prima facie case. The following then occurred: "HIS HONOUR: Mr Abram they are my reasons for doing what I am doing, that is, continuing with the proceedings. Those reasons will be taken out and you will have a copy of those. Is there nothing further you wish to say, Mr Nicholas? NICHOLAS: No. HIS HONOUR: I am satisfied, Mr Abram, in the light of argument that has taken place today and to date that the Court constituted by single judge has power to deal with the matter. I am satisfied that there is a prima facie case made out which calls upon you to answer that case. Do you wish to give any further evidence, or tender any material, or to address the Court? You may do all of those things, or any of them as you wish. ABRAM: Your Honour had earlier led me to believe that I would be allowed to make some submissions to the question of whether there was a prima facie case to answer. HIS HONOUR: I will hear you, if you like. ABRAM: Did I hear you make that decision? HIS HONOUR: That is my prima facie view. You may convince me to the contrary. I thought you made that argument of prima facie case earlier. ABRAM: No. Mr Nicholas had two hours on that occasion. HIS HONOUR: I revoke that order. I will hear Mr Abram in relation to a prima facie case. 1 am satisfied that a Court constituted by a single judge may proceed to determine the matter. 20 UNREPORTED JUDGMENTS On the prima facie case what do you say?" Our reading of the submissions that Mr Abram then made, and the exchanges between him and the judge, reinforces the powerful impression we have of the confusion into which the proceedings had at this stage fallen. However we need not give details because of our opinion that at an earlier stage it had already become necessary, if the prosecution were to continue, for a different court to hear it. At the end of Mr Abram's submissions the judge again held that there was a case to answer. Mr Abram then made another application to the judge that he should disqualify himself. His Honour refused. Mr Abram then gave evidence. Cross-examination extended into the following day. 19 July 1994; 20 July 1994; 21 July 1994. The further hearing of the case continued on these days, at the end of which the judge reserved his decision. 3 August 1994. On this day O'Keefe CJ Comm D gave judgment that Mr Abram was guilty of contempt as charged. 10 August 1994. On this day, after giving Mr Abram an opportunity for putting material and submissions before him on penalty, the judge gave reasons for making the following orders: (a) that the defendant be required to perform, for a period of one hundred hours, community service work, being one hundred hours of unpaid work; (b) that the defendant report, within seven days to the Community Service Organiser at Penrith office of the New South Wales Probation Service at Ist Floor, 86 Henry Street, Penrith, for the purpose of enabling the administration of this order to be commenced. (c) Mr Abram to pay the Bank's costs on a solicitor and client basis. The submissions on appeal. The notice of appeal contained twelve grounds. Ground 7 was that the trial judge erred by refusing to disqualify himself on the grounds of apprehended bias. Grounds 1, 2, 4, 5, 6, 11 and 12 can be summarised as grounds asserting unfairness of various kinds. Ground 3 raised questions of procedure. Ground 8 asserted that the judge had been wrong in finding contempt proved. Ground 9 asserted error in the judge in relying on some evidence in preference to other evidence, and also referred to alleged perjury. Ground 10 also raised a question concerning alleged perjury. We will need to explain these alleged perjury matters in a little more detail. Ground 7. This is the decisive ground. We indicated earlier that after the proceedings had reached the stage they did on 24 November 1993, and they became a full fledged prosecution of a defendant pleading not guilty, they should not have been heard by O'Keefe CJ Comm D. On our reading of the transcript, throughout the proceedings following the application for disqualification, the trial judge, apart from the oversight at the end of the Bank's "no case to answer" submission, was URJABRAM v NATIONAL AUSTRALIA BANK LTD (Mason P, Priestley and Powell JJA) 21 scrupulously fair. That is, however, beside the point of this appeal; the defect that had by then come about in the proceedings was incurable: this judge should not have been hearing the case at all. The proper test for real or apprehended bias appears to have been settled by the High Court in Webb v The Queen (1994) 181 CLR 41. Mason CJ and McHugh J said: "When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has pre judged or might pre judge the case.... The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of 'fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (at 47, citations omitted) Brennan J, in separate reasons, agreed with this statement: at 57. Deane J's formulation of the test, as we read it, was substantially the same: see at 67, 68. So also, we think, Toohey J: see at 87, 88. The "fair-minded people" spoken of in the formulation of Mason CJ and McHugh J are objective observers. In our opinion an objective observer who saw what happened in the proceedings before O'Keefe CJ Comm D on 24 and 30 November 1993, to the stage where the judge disposed of Mr Hastie's case, would inevitably have a reasonable apprehension or suspicion that he had prejudged or at the very least might prejudge the case against Mr Abram. This is demonstrated, we think, by the course of events generally, by the cross-examination of Mr Abram by the judge, and by some of the statements of fact made by the judge in the course of his reasons for judgment in Mr Hastie's case. From that time forward, any decision made by the judge was voidable on the ground of reasonable apprehension of bias as described by Mason CJ and McHugh J. In our opinion the orders of O' Keefe CJ Comm D against Mr Abram must be set aside. Grounds 1, 2, 3, 4, 5, 6, 8, 11 and 12. Our conclusion on Ground 7 makes it unnecessary to deal with any of the other grounds of Mr Abram's appeal, apart from that flowing from Grounds 9 and 10 relating to alleged perjury. Grounds 9 and 10. The references in these grounds to alleged perjury, as relied on in the appeal, refer to attempts by Mr Abram to have two witnesses charged with perjury; see AB 840 and 851, which the judge rejected. The second of these applications was specifically put on the basis of s338(1) of the Crimes Act which precludes the prosecution of any person for perjury unless it be by the Director of Public Prosecutions, or at the direction of the Attorney General or with the leave of the judicial officer before whom the perjury is alleged to have been committed. O'Keefe CJ Comm D refused to grant leave. Mr Abram's attempt to appeal against this refusal is not in proper form. However, we think the order refusing the leave (made on 21 July 1994) is affected by the same invalidity as the judge's substantive orders already dealt with. Until s338 replaced it in 1990 (Act 51 of 1990, Schedule 1), the work of s338 was done by s341. In Commissioner of Police v Reid (1989) 16 NSWLR 453, which dealt with the then s341, it was held by this court that the judicial officer 22 UNREPORTED JUDGMENTS when asked to grant leave to prosecute was acting in an administrative not judicial capacity. In Yeldham v Rajski (1989) 18 NSWLR 48 it was held that the act by a judge of refusing to grant leave under the then s341 carried with it the same kind of judicial immunity as judges have for their strictly judicial acts: see per Hope AJA at 72. A little later, Hope AJA said: "The policy reasons which support the inapplicability of the law of contempt to the judicial acts of judges are equally applicable to the exercise by judges of powers under s340 and s341(1). These powers are incidental to, indeed an extension of the judicial function of presiding at the trial. They are 'intimately associated' with those functions. They are required to be exercised by a judge or magistrate who has direct knowledge, by reason of presiding at the trial, of the evidence given by the alleged perjurer and of the other evidence in the matter. The independence which judges are required to have in the conduct of the trial is equally applicable to the exercise by them of the powers given to them by these provisions. In my opinion the connection between their exercise and the exercise of the judge's judicial functions at the trial is so close that it should be concluded that their exercise by judges is not the subject of the law of contempt." (at 72-73) The same considerations in our opinion apply to the present s338. From these we think it follows that the judge's orders in the present case refusing leave should be treated as vitiated upon the same grounds as require the avoidance of the substantive orders with which his Honour's administrative orders (assuming them to be correctly classified as such) were "intimately associated". This conclusion does not mean that this court is holding that Mr Abram has leave to prosecute the two witnesses; the position in regard to his application for leave to prosecute is as if it had never been made. Should Mr Abram wish, as, in the course of his submissions in this court, he indicated he did wish, to take the alleged perjury question further, he will have to pursue that wish elsewhere than in this appeal. We make no comment, one way or the other, on the wisdom or unwisdom of his seeking to take the matters further. Conclusion. Mr Nicholas for the Bank told the court that if the court were to come to such a conclusion, the Bank would not be submitting that a new trial should be ordered. In our view this was the only submission the Bank could make in the circumstances. It seems to us to follow that the appropriate order to make after setting aside the orders made by the trial judge is an order of dismissal of the Bank's charge of contempt against Mr Abram. As to costs, it was submitted for the Bank that Mr Abram would only be entitled to such costs as the appropriate officer or assessor might allow for legal costs actually incurred by him and such other expenses as might be claimable pursuant to the law as laid down in Cachia v Hanes (1994) 179 CLR 403. However, this court is concerned, in upholding Mr Abram's appeal, only with whether or not a costs order should be made in his favour, not with the amount of costs that may follow from such order or the items making up the amount of such order. In our view the Bank should be ordered to pay Mr Abram's costs of the proceedings before the trial judge and before this court. In reaching this conclusion we have in mind the course adopted by the High Court in Livesey v NSW Bar Association (1983) 151 CLR 288 (see at 292, line 10 and 301) and the fact that although when the proceedings began before O' Keefe CJ Comm D the parties were joining in asking that they be dismissed, the Bank later changed its position, becoming a prosecutor URJ ABRAM v NATIONAL AUSTRALIA BANK LTD (Powell JA) 23 when it was not right that the prosecution should proceed before O' Keefe CJ Comm D. Powell JA The Judgment of the Court in which I have joined records clearly how the proceedings before O' Keefe CJ Comm D miscarried from an early stage and demonstrates, equally clearly, the reasons for the Court's view that this appeal should be upheld and the orders made by O' Keefe CJ Comm D should be set aside. Although, in the circumstances, it is not necessary for the disposition of the appeal that I do so, I would wish to add some short comments as to two aspects of the proceedings before O' Keefe CJ Comm D, the first being as to the manner in which the application to deal with Mr Hastie and Mr Abram was brought before the Court, and the second being whether the matters relied upon by the Bank could, in the circumstances, constitute contempt of court. Procedure Although the Appeal Books bear the three proceeding numbers which are set out in the heading of the Judgment of the Court and in the heading of this Judgment, the Notice of Motion upon which the Bank moved was in fact filed only in proceeding No Comm D 50454 of 1991, in which proceedings the Bank had obtained Judgment for possession against Ms Benecke, she being the only party-Defendant to those proceedings. Proceedings No. Comm D 50395 of 1991 were proceedings which had earlier been brought by Ms Benecke against the Bank, in which proceedings Ms Benecke sought to recover from the Bank damages which she sought to set off against the debt owing by her to the Bank, which debt was secured by the mortgage pursuant to which in proceedings No. Comm D 50454 of 1991 the Bank sought to recover Judgment for possession. Proceedings No. Comm D 50442 of 1992 were proceedings which Ms Benecke later brought against the Bank with a view to having set aside a settlement of the two earlier sets of proceedings, pursuant to which settlement the Bank had obtained the Judgment for possession which is referred to in the Judgment of the Court. As will be apparent neither Mr Hastie nor Mr Abram was a party to any of the three proceedings and, in particular, neither was a party to the proceedings in which the Bank had recovered Judgment for possession and in which proceedings it was to make the application which was to lead to this appeal. Although Mr Hastie was later to commence proceedings No. CLD 12469 of 1993 claiming against the Bank the relief referred to in the Judgment of the Court, Mr Abram was not a party to those proceedings. Although, as I have earlier noted, neither Mr Hastie nor Mr Abram was a party to proceedings No. Comm D 50454 of 1991, the application which was ultimately to come before O'Keefe CJ Comm D was commenced by Notice of Motion filed on 30 July 1993 to which Notice of Motion Ms Benecke, Mr Hastie and Mr Abram, the later two described, rather incongruously, as the "First Defendant" and "Second Defendant" respectively, were joined as Respondents in which Notice of Motion the Bank sought, inter alia: "1. A declaration that Raymond Michael Hastie is guilty of contempt of court in that he entered upon premises at 24 Mulgrave Road, Mulgrave on 16 July 1993 and remained there until 19 July 1993 securing those premises against the plaintiff Bank and denying the Bank, its agents or servants, access to the premises. 24 UNREPORTED JUDGMENTS 2. A declaration that Joseph Abram is guilty of contempt of court in that he entered upon premises at 24 Mulgrave Road, Mulgrave on 16 July 1993 and remained there until 19 July 1993 securing those premises against the plaintiff Bank and denying the Bank, its agents or servants, access to the premises. 3. An order that the First Defendant and the Second Defendant be punished or otherwise dealt with for contempt. 4. An order that the Defendants (sic) make good to the Plaintiff the loss or expense occasioned by the contempt." For my own part, I am quite unable to understand upon what basis a party to proceedings can be said to be able, by interlocutory motion in those proceedings, to seek to have persons who are not parties to those proceedings dealt with by the Court for contempt of court, particularly so where, as in this case, the contempt charged is criminal contempt. If what Mr Abram was later to tell Giles J (as his Honour then was) when the Motion came before him on 6 August 1993 (see Appeal Book p11) be correct, a similar view appears, at the time, to have been held by a member of the Registry staff who is said to have informed Mr Abram that the matter ought never to have been commenced by Notice of Motion but should have been commenced by Summons. Despite Mr Abram having raised the matter at the first available opportunity on the return of the Notice of Motion, Giles J declined to accede to Mr Abram's application that the Motion be dismissed (Appeal Book p14). The basis upon which, so Mr WH Nicholas QC, who appeared on the hearing of the appeal for the Bank, informed us that the Bank proceeded by Notice of Motion rather than by substantive Summons in fresh proceedings is to be found in Pt55 r6 of the Supreme Court Rules, which provides: "6(1) Where contempt is committed in connection with proceedings in the court, an application for punishment for contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the court otherwise orders. (2) Where contempt is committed, but not in connection with proceedings in the court, proceedings for punishment of the contempt must be commenced by Summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the later proceedings, unless the court otherwise orders." Despite the terms of the rules, it is to be recalled that the Supreme Court Act 1970 provides (inter alia) as follows: (2) There are assigned to the Court of Appeal proceedings in the court: (4) This section does not affect (a) the powers of the Court in a Division in relation to punishment for: (i) contempt in the face of the Court in that Division or in the hearing of the Court in that Division; (ii) disobedience to a judgment or order of the Court in that Division; or (iii) breach of an undertaking given to the Court in that Division; or (b) the powers of a Master in relation to punishment for (i) contempt in the face of the Court or in the hearing of the Court; or URJ ABRAM v NATIONAL AUSTRALIA BANK LTD (Powell JA) 25 (ii) breach of an undertaking given to the Court, where the Court is constituted by that Master. 51(1) Where proceedings are commenced in a Division but are under this or any other Act or under the rules assigned to the Court of Appeal: (a) the proceedings shall be for all purposes well commenced on the date of commencement in the Division, notwithstanding that the proceedings are assigned to the Court of Appeal; (b) the Court of Appeal or the Court in the Division in which the proceedings are pending may, in either case on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal; (c) upon an order for removal being made under para(b) the proceedings may be continued and disposed of in the Court of Appeal; and (d) subject to any order under para(b) the proceedings may be continued and disposed of in a Division." The language of s48, s51 of the Supreme Court Act 1970 in my view makes it clear that it was the then intention of the legislature that, in the ordinary course, proceedings charging contempts of court of the type now under consideration should be assigned to, and dealt with in, the Court of Appeal, as, in fact, occurred during the period following the creation of the Court of Appeal and prior to the coming into effect of the provisions of the Supreme Court Act 1970 (see, for example, Re Barnes;! Re Goldman2). Although the language of Pt55 r6(1) of the Supreme Court Rules at first sight appears apt to permit an application for punishment for contempt of the type now under consideration to be made by motion on notice in the principal proceedings, since the alleged contempt could be said to be "in connection with (the principal) proceedings", it seems to me that the better view is that the types of contempt to which r6(1) is directed are those referred to in s48(4) of the Supreme Court Act 1970, it following that proceedings seeking to punish for a contempt of the type now under consideration ought to be brought by substantive Summons in the Court of Appeal even though it might be said that the contempt charged is "in connection with (the principal) proceedings" - this would appear to accord with the views expressed by Kirby P (as he then was) in European Asian Bank AG v Wentworth.3 Had that course been followed in the present case, then, I believe, the events which gave rise to this appeal would never have occurred. Whether or not the view which I have expressed be sound, the amendments to s48, s53 of the Supreme Court Act 1970 which will be made when the Courts Legislation Amendment Act 1996 is proclaimed will have the effect that, although, in the future, such proceedings need not be commenced in the Court of Appeal, they will need to be commenced by independent proceedings in the Common Law Division, with an appeal against conviction lying to the Court of Appeal and, with the Attorney-General, in the case of an alleged contemnor having been found not to have committed contempt, having the right to submit to the Court of Appeal any question of law arising from, or in connection with, those proceedings. 1. (1968) 87 WN (Pt1) 479; [1968] 1 NSWR 697 2. (1968) 89 WN (Pt1) 175 (Street J); 89 WN (Ptl) 182 (CA); [1968] 3 NSWR 325 (CA) 3. (1986) 5 NSWLR 445, 452-453 26 UNREPORTED JUDGMENTS Whether entry and remaining upon premises a contempt of court Although, as the Judgment of the Court records, at one stage O'Keefe CJ Comm D appeared to believe that the Bank was alleging (inter alia) that the events of 16 July 1993 constituted contempt of court as being an attempt to subject the Bank to improper pressure in relation to proceedings No CLD 12469 of 1993 which had been commenced by Mr Hastie (as to which see Attorney-General v Times Newspapers Ltd;4 Commercial Bank of Australia Ltd v Preston;5 Attorney-General v Hislop®) the form of the declarations sought by the Bank in the Notice of Motion make it clear, in my view, that it was the actions of Mr Hastie and Mr Abram in entering, and remaining upon, the premises and denying access to the Bank which were alleged to constitute the contempt which O' Keefe CJ Comm D was later to find established. While I am prepared to accept that there may be rare cases in which the resumption of possession of premises after the entry by the Sheriff under a Writ of Possession and the delivery of possession to the Plaintiff may constitute contempt of court and may be dealt with as such (see, for example, Lacon v DeGroat') it seems to me that, in the ordinary course, such a re-entry, while constituting a trespass, would not constitute contempt, the plaintiff's remedy in the ordinary course being either an application for an order in the nature of a writ of restitution (Pitcher v Roe;8 Alliance Building Society v Austen?) or, alternatively, an application for a mandatory order for delivery up of possession and an injunction restraining further re-entry in each case directed to the person entering upon the premises. Those cases in which re-entry might be held to constitute contempt are cases in which the alleged contemnor has frustrated, or attempted to frustrate, the execution by the Court's officer, the Sheriff of a writ of possession. In the report of Lacon v DeGroat,!° an appeal to the Divisional Court of the Queens Bench Division from a Judgment of Wills J at first instance, Pollock B is recorded as having said: "Tn a case like this, where Judgment had been given that the Plaintiff shall recover possession of premises and a writ has been issued to the Sheriff to deliver possession: if the officer has been apparently put in possession and the Defendant chooses at some later time to change his mind and came back to the premises and by craft or force to again obtain possession, it was right that an attachment should be issued against him on the ground that he had not really given up possession. Whenever, the writ being put in force, the defendant or anybody who assists him, does not fully and honestly give up possession, but only colourably does so, the judge applied to may and ought to find that the process of the court has not been obeyed and there has been a contempt of court." As the facts recorded in the Judgment of the Court clearly demonstrate, the present was far from being a case in which there had been but a colourable delivery of possession and possession had been regained by fraud or some stratagem - it was the better part of 3 weeks after possession had been delivered up before Mr Hastie and Mr Abram attempted to re-enter the premises. In my view, re-entry into possession, in the circumstances, did not constitute contempt [1974] AC 273 [1981] 2 NSWLR 554 [1991] 1 QB 514 (1893) 10 TLR 24 (1841) 9 DOWL 971 [1951] 2 AER 1068 supra SeOPNaws URJ ABRAM v NATIONAL AUSTRALIA BANK LTD (Powell JA) 27 and the Bank's application to have Mr Hastie and Mr Abram dealt with for contempt was misconceived - the initial reaction of the Bank's solicitors that an earlier re-entry by Mr Hastie and Mr Abram constituted trespass (Appeal Book p785-p786) was, in my view, correct and, had the Bank taken the course which I have suggested above as being appropriate, this whole sorry business could have been avoided. (1) Appeal allowed. (2) Orders of O'Keefe CJ Comm D set aside. (3) Charge of contempt against the appellant dismissed. (4) Respondent to pay the appellant's costs of the proceedings before the trial judge and before this court. Counsel for the appellant: In person Solicitors for the appellant: Dennis Pennington Counsel for the respondent: WH Nicholas QC/TD Castle Solicitors for the respondent: Mallesons, Stephen, Jaques